REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF LABOR AND EMPLOYMENT

NATIONAL LABOR RELATIONS COMMISSION
NATIONAL CAPITAL REGION
NLRC BOOKMAN BUILDING QURZON AVE. QUEZON CITY
REGIONAL ARBITRATION BRANCH IV
ROOM 205, 2ND FLOOR, BOOKMAN BLDG.

RODRIGO DELA FLAY,

Complainant,
NLRC RAB V. NCR 245150
-versus - For: Illegal Dismissal

ONLY CORPORATION INC.,

AND MAGNO DE MANGO,
Respondents.
x-------------------------------------------------------x

POSITION PAPER FOR THE COMPLAINANT

COMPLAINANT, by undersigned counsel, unto this Honorable Commission,

most respectfully alleges:

PARTIES

Complainant is of legal age, married, Filipino, and residing at No. 1 Padre Burgos
Street, Barangay Poblacion, Batangas Philippines. He may be served with notices,
orders, and other legal processes of the Honorable Commission through his counsel of
record.

Respondent Corporation is a duly registered corporation with business address

at 321 Star Building, San Juan, Batangas, where it may be served with summons,
notices, and other legal process of this Honorable Commission.

Individual Respondent Magno de Mango is of legal age, married, Filipino, and

residing at 321 Star Building, San Juan, Batangas, where he may be served with
summons, notices, orders, and other legal processes of this Honorable Commission. He
is impleaded in his official and personal capacity.

STATEMENT OF FACTS

1. Complainant was hired by respondent company on November 2001 as casual

checker. His work includes the checking and counting of raw materials which will
be loaded inside respondent’s trucks for dispatch to various client destinations.
His work schedule is from Monday to Saturday, at 7:30 o’clock in the morning
until 5:30 o’clock in the afternoon.

2. RODRIGO DELA FLAY, twenty-eight (28) years of age, Filipino, and residing at
No. 1 Padre Burgos Street, Barangay Poblacion, Batangas Philippines;

3. The operation compound is located in SAN JUAN, BATANGAS PHILIPPINES;

4. His certificate of employment was signed by JUANA LABANDERA, then Port

Manager of the respondent;

5. He was an employee from November 2001 up to April 2016. He was a casual

employee for a period of one (1) year before becoming a regular employee.

6. He works from Monday to Saturday from eight o’ clock in the morning until five in
the afternoon.

7. He receives a minimum wage per month from November 2011 until December
2012. His latest monthly salary amounted to Eight Thousand Seven Hundred
and Ninety-Seven Pesos (P8,797.00) per month (as of 2013);

8. He received no benefits during his tenure.

9. See the following documents in support of the foregoing statements:

\
a. ANNEX “A” – Petiton
b. ANNEX “B” – Certificate of employment, dated November 2001
c. ANNEX “C” – Payslip of Complainant
 d. ANNEX “D-1” – Holidays for the year 2001
e. ANNEX “D-2” – Holidays for the year 2002
f. ANNEX “D-3” – Holidays for the year 2003
g. ANNEX “D-4” – Holidays for the year 2004
h. ANNEX “D-5” – Holidays for the year 2005
i. ANNEX “D-6” – Holidays for the year 2006
j. ANNEX “D-7” – Holidays for the year 2007
k. ANNEX “D-8” – Holidays for the year 2008
l. ANNEX “D-9” – Holidays for the year 2009
m. ANNEX “D-10” – Holidays for the year 2010
n. ANNEX “D-11” – Holidays for the year 2011
o. ANNEX “D-12” – Holidays for the year 2012
p. ANNEX “D-13” – Holidays for the year 2013
q. ANNEX “D-14” – Holidays for the year 2014
r. ANNEX “D-15” – Holidays for the year 2015
s. ANNEX “D-16” – Holidays for the year 2016
t. ANNEX “E” - Judical Affidavit of Rodrigo Dela Flay
u. ANNEX “F” - Judicial Affidavit of Lupito Del Torro

10. The complainant was a regular employee of the respondent company when he
was terminated in April 2016 having served it for more than fifteen (15) years as
of that date.

11. Complainant performed his tasks well for more than a decade, and was not
involved in any misconduct in relation to his employment.

12. In June 2014, One Corporation, Inc. issued a Memorandum to all employees
directing them to report at 7:30 AM to 5:30 PM, which the complainant complied
with for nine (9) months until March 2015. No overtime pay was given to them for
the additional hour worked, and monthly wage remained at P8,797.00, as shown
by the previous payslips.

13. Eventually, the practice of nine (9) hour work days stopped, and they resumed
the regular eight (8) hour work days. It was at this time that complainant, DELA
FLAY, noticed that the management started to treat him differently as from
before.
14. The regular practice of rotating tasks no longer applied to the complainant, as he
was advised that his duties were to be fixed to the pounding of fertilizers. He was
no longer required to do the tasks of checking and cleaning warehouses.

15. The complainant did not ask about the sudden change of his duties, continuing
to do his assigned tasks.

16. In early 2016, the Complainant and LUPITO DEL TORRO were both asked by
management if they would like to transfer to Cagayan De Oro. When asked
about the necessity of a transfer, DE MANGO replied that he was instructed by
their head office in MANILA to facilitate the transfer.

17. The following day, Complainant and DEL TORRO informed DE MANGO that
they would rather be terminated than transferred to Cagayan De Oro. Further,
they were not terminated from their respective positions, and they still reported
and was accepted to work.

18. In one incident, Complainant went out of the compound during his lunch break,
and was not able to come back to work, which resulted in his “undertime.”

19. He was confronted and warned orally about his misconduct, and advised that if
he would like to go home early, then he must inform his immediate supervisor.

20. On April 5, 2021, Complainant received a Memorandum accusing him of

absence from work, and requiring him to explain his conduct, which included his
refusal to transfer to Cagayan De Oro, which was considered as Serious
Disobedience and Gross Neglect of Duties, as narrated below:

a. “Maraming beses na hinahanap ngunit hindi ka matagpuan”

b. “May pagkakataon na lumabas ka ng compound ngunit hndi (sic) na
bumabalik sa tamang oras.”
c. “Madalas kang mahuli na may kausap sa telepono habang nasa oras ng
trabaho.”
d. “Madalas ka nag a undertime ngunit hindi ka nagpapaalam, at hindi mo
tinatapos sa tamang oras ang trabaho mo bagkus ay nagpapapalit ka sa
ibang empleyado ng walang paalam sa opisina”
e. “Gumagamit ka ng biometric at kumpleto and iyong oras subalit iniwan
mo ang iyong ginagawa at hindi mo tinatapos and trabaho.”
 21. On April 5, 2016, Complainant prepared a hand-written note addressed to
management denying the allegations that were in the Memorandum. After two
weeks, Complainant was denied entry by the security guard, as there was a
Memorandum filed for his dismissal due to Serious Disobedience and Gross
Neglect of Duty.

STATEMENT OF ISSUES

I. WHETHER OR NOT COMPLAINANT WAS ILLEGALY DISMISSED FROM WORK.

II. WHETHER OR NOT COMPLAINANT IS ENTITLED TO HOLIDAY PAY, OVERTIME

PREMIUM, SERVICE INCENTIVE LEAVE, SEPARATION PAY, UNPAID 13 TH MONTH
PAY

III. WHETHER COMPLAINANT IS ENTITLED TO MORAL AND EXAMPLARY

DAMAGES AND ATTORNEY’S FEES.

IV. WHETHER INDIVIDUAL RESPONDENT IS PERSONALLY LIABLE FOR ALL THE

CLAIMS OF COMPLAINANT

ARGUMENTS

I.

1. Complainant was a regular employee.

An employment is deemed regular where the employee:

a. has been engaged to perform activities which are usually necessary or desirable in the
usual business or trade of the employer, or
b. has rendered at least one (1) year of service, whether such service is continuous or
broken, with respect to the activity in which he is employed (Mehitabel Furniture Co., Inc.
v. NRC, 220 SCRA 602).

The determination of regular and casual employment is not affected by the fact that the
employee's regular presence in the place of work is not required, the more significant
consideration being that the work of the employee is usually necessary or desirable in the
business of the employer (Opulencia Ice Plant and Storage v. NLRC, G.R. No. 98368, 15
December 1993). The primary standard or test for determining regular employment is the
reasonable connection between the particular activity performed by the employee in rela- tion to
the usual trade or business of the employer (Tan v. Lagrama, 387 SCRA 393).

When regular employment status attaches to a casual worker It is more in keeping with
the intent and spirit of the law to rule that the status of regular employment attachés to the
casual worker on the day immediately after the end of his first year of service. To rule otherwise,
and to instead make their regularization dependent on the happening of some contingency or
the fulfillment of certain requirements, is to impose a burden on the employee which is not
sanctioned by law (Kay Products, Inc. v. C.A., G.R. No. 162427, 28 July 2005).

2. He was dismissed for Serious

Disobedience and Gross Neglect of
Duty

In order that the willful disobedience by the employee may constitute a just cause for
terminating his employment, the orders, regulations, or instructions of the employer or
representative must be:
a. reasonable and lawful;
b. sufficiently known to the employee; and
c. in connection with the duties which the employee has en- gaged to discharge.

Where an order or rule is not reasonable, in view of the terms of the contract of
employment and the general rights of the parties, a refusal to obey does not constitute a just
cause for the employee's discharge. As to what is a reasonable rule or order will depend on the
circumstances of each case. Reasonableness, however, has reference not only to the kind and
character of directions and commands, but also the manner in which they are made. The
employee's disobedience, in order to justify his dismissal under this provision, must relate to
substantial matters, not merely to trivial or unimportant matters. Furthermore, disobedience to
be consid- ered willful must be resorted to without regard to its consequences DOLE Manual;
BLTB Co. v. CA, 71 SCRA 470; Family Planning Org. of the Phil., Inc. v. NRC, G.R. No. 75907,
23 March 1992).

As a just cause for dismissal of an employee under Art. 297 of the Labor Code, willful
disobedience of the employer's lawful order requires the concurrence of two (2) elements:

a. The employee's assailed conduct must have been willful or intentional, the willfulness
being characterized by a wrongful and perverse attitude; and
 b. The order violated must be based on a reasonable and lawful company rule, regulation
or policy and made known to the employee and must pertain to the duties for which he
has been engaged to discharge (Dongon v. Rapid Movers et al., G.R. No. 163341, 28
August 2013).

For an employee to be validly dismissed on this ground, the employer's orders,

regulations, or instructions must be:

(1) reasonable and lawful;

(2) sufficiently known to the employee; and
(3) in connection with the duties which the employee has been engaged to discharge (St.
Luke's v. Sanchez, G.R. No. 212054, 11 March 2015)

Generally, gross neglect means an absence of that diligence that an ordinarily prudent
man would use in his own affairs. In order to constitute a just cause for the employee's
dismissal, the neglect of duties must not only be gross but must also be habitual. Thus, a single
or isolated act of negligence does not constitute a just cause for the dismissal of the employee.
To justify the dismissal of an employee for neglect of duties, however, it does not seem
necessary that the employer show that he has incurred actual loss, damage or prejudice by
reason of the employee's conduct. It is sufficient that the gross and habitual neglect by the
employee of his duties tends to prejudice the employer's interest since it would be unreasonable
to require the employer to wait until he is materially injured before removing the cause of the
impending evil (DOLE Manual).

Gross negligence implies a want or absence of or a failure to exercise slight care or

diligence, or the entire absence of care. It evinces a thoughtless disregard of consequences
without exerting any effort to avoid them. (Manila Memorial Park Cemetery, Inc. v. Panado, G.R.
No. 167118, June 15, 2006, 490 SCRA 751, 770).

Habitual neglect implies repeated failure to perform one's duties for a period of time,
depending upon the circumstances. (Premiere Development Bank v. Mantal, G.R. No. 167716,
March 23, 2006).

Neglect of duty to be a ground for dismissal, the following requisites must concur:

a. There must be negligence which is gross and/or habitual in character; and

b. It must be work-related as would make him unfit to work for his employer.

Neglect of duty, to be a ground for dismissal, must be both gross and habitual (National
Sugar Refineries Corporation v. National Labor Relations Commission, G.R. No. 122277, 24
February 1998). Gross negligence connotes want or absence of or failure to exercise slight care
or diligence, or the entire absence of care. It evinces a thoughtless disregard of consequences
without exerting any effort to avoid them. Fraud and willful neglect of duties imply bad faith of
the employee in failing to perform his job, to the detriment of the employer and the latter's
business. Habitual neglect, on the other hand, implies repeated failure to perform one's duties
for a period of time, depending upon the circumstances (International School Manila v. ISAE,
G.R. No. 167286, 5 February 2014).

In Helmut Dosch vs. National Labor Relations Commission And Northwest

Airlines, Inc., Security of tenure is intended to shield workers from unwarranted and
unconsented demotion and transfer. Thus, it can be invoked by an employee who was
transferred to an assignment which required him to stay away from his family although
the same is considered as a promotion in rank with corresponding raise in pay. In the
present case, Not only there is no a raised in his salary, complainant cannot be subjected to
unwarranted and consented transfer to another place for he will be away with his family.

3. He was dismissed without due

process

The essence of due process simply means that the employer shall afford the worker an
ample opportunity to be heard, or as applied to administrative proceedings, an opportunity to
explain one's side or an opportunity to seek a reconsideration of the actior or ruling complained
of (Stayfast Phils. Corp. v. NLRC, 218 SCRA 596; Villareal v. CA, 219 SCRA 292).

For a worker's dismissal to be considered valid, it must comply with both procedural and
substantive due process. The legality of the manner of dismissal constitutes procedural due
process, while the legality of the act of dismissal constitutes substantive due process (Quirico
Lopez v. Alturas Group of Companies and /or Marlito Uy, G.R. No. 191008, 11 April 2011).

In Kings of Kings Transport, Inc. v. Mama, G.R. No. 166208, June 29, 2007, the
Supreme Court laid down the manner by which the procedural due process can be satisfied:

(1) The first written notice to be served on the employee should:

a. Contain the specific causes or grounds for termination against him;

b. Contain a directive that the employee is given the opportunity to submit his written
explanation within a reasonable period of five (5) calendar days from receipt of the
notice:
1. to enable him to prepare adequately for his defense;
2. to study the accusation against him;
3. to consult a union official or lawyer;
4. to gather data and evidence; and
5. to decide on the defenses he will raise against the complaint.
 c. Contain a detailed narration of the facts and circumstances that will serve as basis for
the charge against the employee. This is required in order to enable him to intelligently
prepare his explanation and defenses. A general description of the charge will not
suffice.
d. Specifically mention which company rules, if any, are violated and/or which among the
grounds under Art. 297 is being charged against the employee.

(2) Hearing conducted After serving the first notice, the employer should schedule and
conduct a hearing or conference wherein the employee will be given the opportunity to:

1. explain and clarify his defenses to the charge/s against him;

2. present evidence in support of his defenses;
3. rebut the evidence presented against him by the management.

During the hearing or conference, the employees are given the chance to defend
himself personally, with the assistance of a representative or counsel of his
choice. Moreover, this conference or hearing could be used by the parties as an
opportunity to come to an amicable settlement.

(3) Post-notice, Second written notice Notice of dismissal After determining that termination
of employment is justified, the employer shall serve the employee a written notice of
termination indicating that:
1. all circumstances involving the charge against the employee have been
considered; and
2. grounds have been established to justify the severance of his employment.

The Perez Doctrine enunciates the new guiding principle on the hearing aspect of
procedural due process. It has interpreted the term "ample opportunity to be heard" to mean:

a. "Ample opportunity to be heard" means any evidence in support of his defense, whether
in a hearing, conference or some other fair, just and reasonable way.
b. formal hearing or conference is no longer mandatory. It becomes mandatory only under
any of the following circumstances:
1. When requested by the employee in writing; or
2. When substantial evidentiary disputes exist;
3. When a company rule or practice requires it; or
4. When similar circumstances justify it.

4. He should be reinstated to his former

position and paid full backwages.
 Backwages are granted earnings a worker has lost due to his illegal dismissal, and an
employer is obliged to pay an illegally dismissed employee the whole amount of salaries plus all
other benefits and bonuses and general increases to which the latter would have been normally
entitled had he not been dismissed (Sigma Personnel Services v. NRC, G.R. No. 108284, 30
June 1993).

The base figure to be used in the computation of backwages due to the employee
should include not just the basic salary, but also the regular allowances that he had been
receiving, such as the emergency living allowances and the 13th month pay mandated under
the law (Ibid.). Simply stated, computation of backwages should be based on the basic salary at
the time of the employee's dismissal plus the regular allowances that he had been receiving
(Espejo v. NLRC, G.R. No. 112678, 29 March 1996).

The Bustamante ruling (Full backwages without qualification or deduction), prevailing

rule; "deduction of earnings elsewhere" rule, abandoned An illegally dismissed employee is
entitled to full backwages, inclusive of allowances, and to his other benefits or their monetary
equivalent, computed from the time his compensation was withheld from him up to the time of
his actual reinstatement. However, the amount due to the employees for backwages is subject
to deductions for any amount which the employees may have earned elsewhere during the
period of their illegal dismissal since they should not be permitted to enrich themselves at the
expense of their employer, and furthermore because the law abhors double compensation
(Pines City Educational Center v. NLRC, G.R. No. 96779, 10 November 1993).

II.

1. Complainant is entitled to backwages

It is well settled that backwages may be granted only when there is a finding of illegal
dismissal. (Leopard Security and Investigation Agency v. Quitoy, G.R. No. 186344, 20 February
2013: Best Wear Garments v. De Lemos, G.R. No. 191281, 5 December 2012).

Since the complainant was illegaly dismissed on April 2016, there is a total of sixty
seven (67) months from November 2021. The computation is:

67 x 8797 (monthly basic pay) = 589,399 (backwages)

2. Complainant is entitled for the unpaid premium pay on a holiday

 Holiday pay is a form of premium accorded to an employee who does not work
on regular holidays. If he works on said regular holidays, he is entitled to an additional
compensation over his regular or basic remuneration known as premium pay.

Covered employee who reports on regular holidays is entitled to two hundred

(200%) of his regular wage. While a covered employee who works on a special holiday
is paid an additional compensation of not less than thirty percent (30%) of his basic
pay or a total of one hundred thirty (130%) percent.

Rodrigo Dela Flay is entitled to receive his unpaid premium pay on a holiday
since the he reported to work on holidays. The holidays that transpired during his
employment are as follows:

Year Regular Holiday Special Holiday

2001  November 30 – Bonifacio
Day
 December 25 – Christmas
Day
 December 30 – Rizal Day
2002  January 1 – New Year’s Day
 March 28 – Maundy
Thursday
 March 29 – Good Friday
 April 9 – Araw ng Kagitingan
 April 29 – Labor Day
 June 12 – Independence
Day
 August 26 – National Heroes
Day
 November 30 – Bonifacio
Day
 December 25 – Christmas
Day
 December 30 – Rizal Day
2003  January 1 – New Year’s Day
 April 9 – Araw ng Kagitingan
 April 17 – Maundy Thursday
 November 1 – All Saints
Day
 December 17 – Eid’l Fitr
 November 2 – All Souls Day
 February 12 – Chinese New
Year
 February 23 – Eid Al – Adha
 February 25 – People
Power Anniversary
 March 30 – Black Saturday
 March 31 – Easter Sunday
 November 1 – All Saints
Day
 November 2 – All Souls Day
 December 6 – Eid’l Fit’r
 February 1 – Chinese New
Year’s Day
 February 12 – Eid Al-adha
  April 18 – Good Friday
 April 19 – Black Saturday
 April 20 – Easter Sunday
 April 28 – Labor Day
 June 12 – Independence
Day
 August 25 – National Heroes
Day
 November 30 – Bonifacio
Day
 December 25 – Christmas
Day
 December 30 – Rizal Day
2004  January 1 – New Year’s Day
 April 8 – Maundy Thursday
 April 9 – Good Friday
 April 9 – Araw ng Kagitingan
 May 3 – Labor Day
 June 12 – Independence
Day
 August 30 – National Heroes
Day
 November 1 – All Saints Day
 November 30 – Bonifacio
Day
 December 25 – Christmas
Day
 December 30 – Rizal Day
2005  January 1 – New Year’s Day
 March 24 – Maundy
Thursday
 March 25 – Good Friday
 April 9 – Araw ng Kagitingan
 May 2 – Labor Day
 June 12 – Independence
Day
 August 29 – National Heroes
 February 25 – People
Power Anniversary
 April 19 – Black Saturday
 April 20 – Easter Sunday
 November 1 – All Saints
Day
 November 2 – All Souls Day
 November 26 – Eid’l Fit’r
 January 22 – Chinese New
Year
 February 2 – Eid’l Adha
 February 25 – People
Power Anniversary
 April 10 – Black Saturday
 April 11 – Easter Sunday
 August 21 – Ninoy Aquino
Day
 November 1 – All Saints
Day
 January 21 – Eid Al-Adha
 February 9 – Chinese New
Year
 February 25 – People
Power Anniversary
 March 26 – Black Saturday
 August 21 – Ninoy Aquino
Day
 November 1 – All Saints
 Day
 October 31 – Extra Day to All
Saints Day
 November 30 – Bonifacio
Day
 December 25 – Christmas
Day
 December 30 – Rizal Day
2006  January 1 – New Years Day
 April 9 – Araw ng Kagitingan
 April 13 – Maundy Thursday
 April 14 – Good Friday
 May 1 – Labor Day
 June 12 – Independence
Day
 August 21 – Ninoy Aquino
Day
 August 28 – National Heroes
Day
 November 30 – Bonifacio
Day
 December 25 – Christmas
Day
 December 30 – Rizal Day
2007  January 1 – New Years Day
 April 5 – Maundy Thursday
 April 6 – Good Friday
 April 9 – Araw Ng Kagitingan
 April 30 – Labor Day
 June 12 – Independence
Day
 August 27 – National Heroes
Day
 November 4 – Eid’l Fit’r
 November 2 – All Soul’s
Day
 January 10 – Eid Al-Adha
 January 29 – Chinese New
Year
 February 25 – People
Power Anniversary
 April 13 – Maundy Thursday
 April 15 – Black Saturday
 April 16 – Easter Sunday
 May 1 – Labor Day
 June 12 – Independence
Day
 August 21 – Ninoy Aquino
Day
 October 24 – Eid’l Fit’r
 November 1 – All Saints
Day
 November 2 – All Souls Day
 December 26 – Special Day
After Christmas
 December 31 – Eid’l Adha
 February 18 – Chinese New
Year
 February 25 – People
Power Anniversary
 April 7 – Black Saturday
 April 8 – Easter Sunday
 April 9 – Araw ng Kagitingan
 Day
 November 30 – Bonifacio
Day
 December 25 – Christmas
Day
 December 30 – Rizal Day
2008  January 1 – New Years Day
 March 20 – Maundy
Thursday
 March 21 – Good Friday
 April 9 – Araw ng Kagitingan
 April 28 – Labor Day
 June 12 – Independence
Day
 August 25 – National Heroes
Day
 December 1 – Bonifacio Day
 December 25 – Christmas
Day
 December 29 – Rizal Day
2009  January 1 – New Years Day
 April 9 – Maundy Thursday
 April 9 – Araw ng Kagitingan
 April 10 – Good Friday
 May 4 – Labor Day
 June 12 – Independence
Day
 August 31 – National Heroes
Day
 September 21 – Eid’l Fit’r
 September 21 – Eidl’ Ahda
 November 30 – Bonifacio
 April 30 – Labor Day
 June 11 – Independence
Day Non-Working Holiday
 August 20 – Ninoy Aquino
Non-Working Holiday
 August 21 – Ninoy Aquino
Day
 October 13 – Eid’l Fit’r
 November 2- Extra Day for
All Saint’s Day
 December 20 – Eid’l Adha
 February 7 – Chinese New
Year’s Day
 March 22 – Black Saturday
 March 23 – Easter Sunday
 October 2 – Eid’l Fit’r
 November 1 – All Saints
Day
 November 2- All Souls Day
 December 9 – Eid Al – adha
 December 26 – Special Day
After Christmas
 December 29 – Special Day
After Christmas 2
 January 2 – Special Non –
Working Day after the New
Year
 January 26 – Chinese New
Year
 February 23 – People
Power Anniversary
 Day
 December 25 – Christmas
Day
 December 28 – Rizal Day
2010  January 1 – New Years Day
 April 1 – Maundy Thursday
 April 2 – Good Friday
 April 9 – Araw ng Kagitingan
 May 3 – Labor Day
 June 12 – Independence
Day
 August 30 – National Heroes
Day
 September 10 – Eid’l Fitr
 November 17 – Eid Al –
Adha
 November 29 – Bonifacio
Day
 December 25 – Christmas
Day
 December 27- Rizal Day
2011  January 1 – New Year’s Day
 April 9 – The Day of Valor
 April 21 – Maundy Thursday
 April 23 – Good Friday
 May 2 – Labor Day
 June 12 – Independence
Day
 August 29 – National Heroes
Day
 August 31 – Eid’l Fitr
 November 7 – Eid Al – Adha
 November 30 – Bonifacio
Day
 December 25 – Christmas
Day
 February 14 – Chinese New
Year
 February 22 – People
Power Anniversary
 April 3- Black Saturday
 April 4 – Easter Sunday
 April 9 – Araw ng Kagitingan
 May 10 – National Elections
 August 23 – Ninoy Aquino
Day
 November 1 – All Saints
Day
 November 2 – All Souls Day
 February 3 – Chinese New
Year
 February 28 – People
Power Anniversary
 April 23 – Black Saturday
 April 24 – Easter Sunday
 June 22 – 150th Birthday of
Jose Rizal
 August 29 – National
Heroes Day
 August 31 – Eid’l Fitr
 November 1 – All Saints
Day
 November 2- All Souls Day
  December 30 – Rizal
2012  January 1 – New Years Day
 April 5 – Maundy Thursday
 April 6 – Good Friday
 April 9 – Araw ng Kagitingan
 May 1- Labor Day
 June 12 – Independence
Day
 August 19 – Eid’l Fitr
 August 27 – National Heroes
Day
 October 26 – Eid’l Adha
 November 30 – Bonifacio
Day
 December 25 – Christmas
Day
 December 30 – Rizal Day
2013  January 1 – New Year’s Day
 March 28 – Maundy
Thursday
 March 29 – Good Friday
 April 9 – Araw ng Kagitingan
 May 1 – Labor Day
 June 12 – Independence
Day
 August 8 – Eid’l Fitr
 August 26 – National Heroes
Day
 October 15 – Eid’l Adha
 November 30 – Bonifacio
 December 25 – Christmas
Day
 December 30 – Rizal Day
2014  January 1 – New Years Day
 April 9 – Araw ng Kagitingan
 January 23 – Chinese New
Year
 February 25 – People
Power Anniversary
 April 7 – Black Saturday
 April 8 – Easter Sunday
 August 21 – Ninoy Aquino
Day
 November 1 – All Saints’
Day
 November 2 – Extra Day for
All Saints Day
 February 10 – Chinese
Lunar New Year’s Day
 February 25 – People
Power Anniversary
 March 30 – Black Saturday
 March 31 – Easter Sunday
 August 21 – Ninoy Aquino
Day
 October 28 – Barangay
Elections
 November 1 – All Saints’
Day
 November 2 – All Souls’
Day
 January 31 – Chinese New
Year
  April 17 – Maundy Thursday
 April 18 – Good Friday
 May 1 – Labor
 June 12 – Independence
Day
 July 29 – Eid’l Fitr
 August 25 – National Heroes
Day
 October 6 – Eid’l Al – Adha
 November 30 – Bonifacio
Day
 December 25 – Christmas
Day
 December 30 – Rizal Day
2015  January 1 – New Years Day
 January 2- Day After New
Years Day
 April 2- Maundy Thursday
 April 3 – Good Friday
 April 9 – The Day of Valor
 May 1 – Labor Day
 June 12 – Independence
Day
 July 17 – Eid’l Fitr
 August 31 – National Heroes
Day
 September 25 – Eid’l Adha
 November 30 – Bonifacio
Day
 December 25 – Christmas
Day
 December 30 – Rizal Day
2016  January 1 – New Year’s Day
 March 24 – Maundy
Thursday
 February 25 – People power
Anniversary
 April 19 – Black Saturday
 April 20 – Easter Sunday
 August 21 – Ninoy Aquino
Day
 November 1 – All Saints
Day
 November 2 – All Souls Day
 December 26 – Special Day
After Christmas
 January 2 – Special Non
Working Holiday After the
New Year
 January 15,16,17,18,19 –
Pope’s Visit (Public Holiday
in Manila)
 February 19 – Chinese New
Year in Manila
 February 25 – People
Power Anniversary
 April 4 – Black Saturday
 April 5 – Easter Sunday
 August 21 – Ninoy Aquino
Day
 November 1 – All Saints
Day
 November 2 – All Souls Day
 November 17, 18, 20 –
APEC Summit Extra Holiday
 January 2 – Special Non
working day after the new
year
 February 8 – Chinese Lunar
  March 25 – Good Thursday
 April 9 – Araw ng Kagitingan
New Year
 February 25 – Chinese New
Year
 March 26 – Black Saturday
 March 27 – Easter Sunday

There is a total regular holiday of 167 days. For the special holiday there is 128
days. The basic pay is 366.54166

The computation for the regular holiday premium pay is:

366 .54 (basic pay) x 167 (number of regular holiday) = 61,212

The computation for the special holiday premium pay is:

128 (number of special holiday) x 109.96 (30% of his basic pay) = 14,075.198

The total unpaid premium pay on holiday is 75,287.198

3. Complainant is entitled for the unpaid overtime pay

Any employee who is permitted or required to work beyond eight (8) hours on ordinary
working days shall be paid an additional compensation for the overtime work in an amount
equivalent to his regular wage plus at least twenty-five percent (25%) thereof.

From June 2014 until March 2015, for the period of nine (9) months complainant did not
receive any overtime pay pursuant to the Memorandum issued to all emlpoyees. The practice of
requiring the employees to work for nine (9) hours a day. Thus an additional one (1) hour
overtime was left unpaid.

The computation for unpaid overtime is

45.817707 (hourly basic rate) x .25 = 11.454426

11.454426 (25% of hourly basic rate) x 9 = 103.08983 (total unpaid overtime pay)

4. Complainant is entitled to separation pay in lieu of reinstatement

 Where reinstatement is no longer viable as an option, separation pay equivalent to one
(1) month salary for every year of service should be awarded as an alternative. The basis of the
award was at least one month pay for every year of service, whichever is higher: As to issue of
backwages, the Supreme Court has ruled in a long line of cases that where an employee would
have been entitled to reinstatement with full backwages, but circumstances, i.e., strained
relationship, makes reinstatement impossible, the more equitable disposition would be an award
of separation pay equivalent to at least one (1) month pay, or one (1) month pay for every year
of service, whichever is higher, in addition to full backwages, inclusive of allowances, and other
benefits or their monetary equivalent, computed from the time the employee's compensation
was withheld from him up to the time of his supposed actual reinstatement (Bañares v.
TWASCO, G.R. No. 197353, 1 April 2013).

The computation is:

15 (years of employment) x 8797 = 131,955 (separation pay)

5. Complainant is entitled to the unpaid 13th month pay

All rank-and-file employees regardless of the nature of their employment, and

irrespective of the methods by which they are paid, provided they worked for at least one (1)
month during a calendar year. (No. 1 in relation to No. 2, Revised Guidelines on the
Implementation of the 13th Month Pay Law, dated 16 November 1987).

The base figure to be used in the computation of backwages due to the employee
should include not just the basic salary, but also the regular allowances that he had been
receiving, such as the emergency living allowances and the 13th month pay mandated under
the law (Ibid.). Simply stated, computation of backwages should be based on the basic salary at
the time of the employee's dismissal plus the regular allowances that he had been receiving
(Espejo v. NLRC, G.R. No. 112678, 29 March 1996).

The computation is:

[15 (years of employment) + 6 (backwages for the 13th month pay)] x 8797 = 184,737

6. Complainant is entitled to the service incentive leave

The service incentive leave pay should start a year after commencement of service, for it
is only then that the employee is entitled to such benefit (JPL Mktg. v. C.A., G.R. No. 151966, 8
July 2005).
 Conversion to cash equivalent, purpose; rule on conversion The service incentive leave
is commutable to its money equivalent if not used or exhausted at the end of the year (Sec. 5,
Rule V, Book III, Rules Implementing the Labor Code) based on the salary rate at the date of
commutation.

Since the complainant rendered his service from 2001 upto 2016, for a total of sixteen
(16) years, he is entitled to 80 days service incentive leave.

The computation is:

366 .54 (daily basic pay) x 80 = 29,323.2 (total unpaid service incentive leave)

III.

1. Complainant was summarily dismissed

from work. He is entitled to moral and
exemplary damages.

The nature of moral damages is defined under our Civil Code. Article 2220 states that
willful injury to property may be a legal ground for awarding moral damages if the court should
find that, under the circumstances, such damages are justlydue. The same rule applies to
breaches of contract where the defendantacted fraudulently or in bad faith." In Primero v.
Intermediate Appellate Court, this court stated that damages, as defined in the Civil Code, is
recoverable in labor cases. Thus, moral damages:
. . . cannot be justified solely upon the premise (otherwise sufficient for redress under
the Labor Code) that the employer fired his employee without just cause or due process.
Additional facts must be pleaded and proven to warrant the grant of moral damages under the
Civil Code, these being, to repeat, that the act of dismissal wasattended by bad faith or fraud, or
was oppressive to labor, or done ina manner contrary to morals, good customs, or public
policy;and, of course, that social humiliation, wounded feelings, grave anxiety, etc., resulted
therefrom.

The employee is entitled to moral damages when the employer acted a) in bad faith or
fraud; b) in a manner oppressive to labor; or c) in a manner contrary to morals, good customs,
or public policy.

Bad faith "implies a conscious and intentional design to do a wrongful act for a dishonest
purpose or moral obliquity." Cathay Pacific Airways v. Spouses Vazquez established that bad
faith must be proven through clear and convincing evidence. This is because "badfaith and
fraud . . . are serious accusations that can be so conveniently and casually invoked, and that is
why they are never presumed. They amount to mere slogans or mudslinging unless
convincingly substantiated by whoever is alleging them." Here, there was clear and convincing
evidence of bad faith adduced by the responded.

In the present case, the complainant suffered from mental anguish, serious anxiety,
social humiliation and tarnish his reputation when he was illegally dismissed. The respondent is
clearly is in bad faith when complainant was supposedly transferred his work to a remote place
for him to resign from work.The respondent’s breach of its duty of good faith and fair dealing in
the manner of dismissal. The complainant should be awarded moral damages in the amount of
One Hundred Thousand Pesos (₱100,000.00) and exemplary damages also in the amount of
One Hundred Thousand Pesos (₱100,000.00)

2. Complainant was compelled to hire the

services of counsel. He is entitled to the
payment of attorney’s fees.

The standards for payment of attorney's fees are:

a. they must be reasonable, that is, they must have a bearing on the importance of the
subject matter in controversy;
b. the extent of the services rendered; and
c. the professional standing of the lawyer (Metropolitan Bank and Trust Co. v. Court of
Appeals, 181 SCRA 513; Lacson v. Reyes, 182 SCRA 729).

Attorney's fees awarded in labor cases are deemed part of damages. Attorney’s fees
should be granted as soon as it is established that legal services have been rendered by the
lawyer, or if the employee is compelled to litigate in order to seek redress, or if the dismissal is
attended with bad faith.

The total claim of the complainant amounts to Php 1,210,804.4. The award of attorney’s
fee is ten percent (10%) of the total equivalent claim or 121,080.44.

IV.

MAGNO DE MAGNO IS SOLIDARILY

LIABLE FOR CLAIMS OF COMPLAINANT

In labor cases, the Court has held corporate directors and officers solidarily liable
with the corporation for the termination of employment of employees done with malice or
in bad faith (Fernandez v. Newfeld Staff Solutions, Inc., G.R. No. 201979, 10 July 2013).
Bad faith does not connote bad judgment or negligence; it imports dishonest
purpose or some moral obliquity and conscious doing of wrong; it means breach of a
known duty through some motive or interest or ill will; it partakes of the nature of fraud.
(Malayang Samahan Ng Mga Manggagawa v. Hon. Ramos, G.R. No. 113907, 20 April
2001).
To sustain such a finding, there should be evidence on record that an officer or
director acted maliciously or in bad faith in terminating the employee (Fernandez v.
Nasfeld Staff Solutions, Inc., supra).
Magno De Magno is an officer of the Only Corporation Inc. Having maliciously re-
assign the complainant for an unjust transfer, he is solidarily liable with the respondent
Only Corporation Inc.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed that judgment be

rendered finding that complainant was illegally dismissed from work and directing
respondents, jointly and severally, to:

1. Pay complainant the amount of Php 589,399.00 as full backwages computed

from the time he was illegal dismissed
2. Pay complainant the following labor standards benefits:
2.1. Php 103.09 as unpaid overtime pay
2.2. Php 75,287.20 unpaid holiday pay
2.3. Php 29,323.2 unpaid service incentive leave
2.4. Php 131,955 separation pay
2.5. Php 100,000.00 moral damages
2.6. Php 100,000.00 exemplary damages
2.7. Php 184,737 unpaid 13th month pay
2.8. Php 121,080.44 attorney’s fee

NATE ALUMNO
PTR No. 234975 1/5/2021
IBP No. 989967 1/5/2021
MCLE Compliance No. 0078322
123 C.M. Recto Avenue Manila, Philippines
Alumno.nate@ue.edu.ph
0917-1214-0864

RAFAEL TAN
 PTR No. 198290
IBP No. 986389
MCLE Compliance No. 0067792
1000 C.M. Recto Avenue, Manila Philippines
Tan.rafael@ue.edu.ph
0916-510-2151
VERIFICATION AND CERTIFICATION AGAINST FORUM SHOPPING

I, RODRIGO DELA FLAY of legal age, single and a resident of No. 1 Padre
Burgos Street, Barangay Poblacion, Batangas Philippines, after having been duly sworn
to in accordance with law hereby depose and say:

That I am the complainant in the above-entitled administrative case, and I have

caused the preparation of the foregoing formal charge and affidavit; I have read and
understood its content and the same are true and correct of my own personal
knowledge and based on authentic records;

That I have not commenced any other case/action or proceedings involving the
same issues before this office, in the Supreme Court, the Court of Appeals, or the
different division thereof, or any tribunal agency.

That to the best of my knowledge no such action or proceeding is pending in the

Supreme Court, the Court of Appeals, or the different division thereof, or any tribunal
agency.

That if I should thereafter learn that a similar action or proceedings has been filed
or is pending before this office, Supreme Court, the Court of Appeals, or the different
division thereof, or any tribunal agency. I undertake to promptly inform the said
offices/agencies of that fact within five (5) days therefrom.

IN WITNESS WHEREOF I have hereunto affix my signature in this document this

15th day of November 2021, here at City of Manila Metro Manila, Philippines.

RODRIGO DELA FLAY

AFFIANT
 SUBSCRIBED AND SWORN to before me this 15th day of November, 2021 at
Manila City, Metro Manila. Affiant showing his competent proof of identity: LTO Driver’s
License No. NO3-014324, issued by the Land Transportation Office on April 10, 2017 at
Municipal City Hall of Batangas.

RAFAEL TAN
NOTARY PUBLIC, MANILA CITY
1000 C.M. Recto Avenue, Manila Philippines
Until December 2021
PTR No. 198290
IBP No. 986389
MCLE Compliance No. 0067792

Doc no. 245;

Page No. 24
Book No. 42.
Series of 2021